An Evaluation of the Place of Repatriation in French Law Dealing with Trafficked Persons

Yves Charpenel

Paper presented at

The Pontifical Academy of Social Sciences
Human Trafficking: Issues Beyond Criminalization

17 – 21 April, 2015
Casina Pio IV, Vatican City

Introductory remarks

Ladies and gentlemen, it is an honor to have been invited to present, as part of the 21th Plenary Session of the Pontifical Academy, the sensitive issue of the return to the countries of trafficked victims under French law.

While we speak, over 21 million people, mostly women and nearly 25% of children, are victims every day of trafficking in human beings. Various reports, public and private, all show a worrying increase in this criminal phenomenon.

The violent exploitation of the most vulnerable has indeed become very lucrative. Thus, in 2014, ILO estimated profits of nearly $ 150 billion, of which 100 billion only for the sexual exploitation.

This threat extends to the point of making human trafficking one of the three most profitable vehicles for organized crime with drug trafficking and arms trafficking. International organizations have gradually recognized this trend has only worsened since the adoption in 1949 of a founding Convention by the United Nations.

Since 2005, the Warsaw Convention from the Council of Europe has initiated a process of supervision of legality of migrations, identification of victims and the guarantee of their rights. Yet it must be noted that the development of this crime, motivated by profits from the commodification of bodies, is still faster than the pace of effective transposition into national legislation with international standards.

These trends are analyzed each year by the Foundation Scelles which has a base document and an observatory fed by 20 years of work on a criminal market that is often hidden under the appearance of a single economic activity. In the last 20 years it has observed an increase and acceleration of human trafficking based on unbridled globalization and the substantive and cynical search for criminal profits. This is confirmed by the work of the national coordination against trafficking created in 2013, in line with the European recommendations.

We will see, with the example of France, the particular difficulties of this necessary fight, to confront three specific pitfalls: the first is the indifference of public opinion, which underestimates or ignores the scale and reality of the phenomenon; the second is inherent in the complexities of the fight against transnational organized crime in terms of mutual legal assistance and expansive investigation tools; finally, the third is that many victims of trafficking are also, under national legislation, perpetrators of offenses on illegal immigration.

Indeed, we must keep in mind, whenever it comes to human trafficking, that one of the obvious consequences of the globalization of our world is the increasing risk of opposition between two public policies: one granting priority to the fight against human exploitation by improving assistance to the victims; the other aiming to control the flow of migrants.

Due to the growth of the undetermined number of people involved, willingly or unwillingly in human trafficking, and because of the considerable cost of assistance, for years, in the host country, of victims in great physical, psychological and financial distress, the temptation is to choose a different path, for example, to prefer rapid repatriation rather than on-site monitoring.

The French law in matter of immigration

Another constraint is the delicate coordination with immigration laws. This problem is even more acute because the vast majority of victims present in our country are of foreign origin, and usually irregular.

Up to now, the rights granted to victims by the Code for the Entry and Stay of Foreigners and Right of Asylum (CESEDA) has not generated meaningful effects. Two provisions were introduced in the 2003 law for victims of trafficking, as an alternative to forced return expected in case of violation of immigration law: the first one from article 316-1 that puts the attribution of a temporary residence permit under the condition of lodging a complaint against the trafficker – if the trafficker’s conviction is definitive, a normal residence permit is allowed; the second one from article 313-141 that allows a Prefect to deliver a residence permit for humanitarian reasons.

Unfortunately, the high vulnerability of these victims, the long wait for a final conviction – over three years on average – jeopardize the effective attribution of the permits which condition the access to legal work and therefore the possible integration of human trafficking victims.

The French office for immigration and integration (OFII) is normally responsible for return assistance of foreigners illegally present in France, as well as foreigners legally on French territory who are in a situation of deprivation and great financial insecurity. The OFII assists in obtaining travel documents, covering the air ticket fare and providing financial assistance on the day of departure (300 euros per child and 2000 per adult). This option provided by Article R316-9 CESEDA and Article 5223-1 of the Labour Code remains virtual in the case of victims of trafficking.

Human trafficking in France nowadays

According to the ILO (International Labour Organisation) my country counted in 2014 270,000 victims of all forms of trafficking, including 40,000 for sexual exploitation. Countries of origin are mainly from Eastern Europe, sub-Saharan Africa, North Africa, Brazil and China. Victims of sexual exploitation are 90% foreign nationals and 95% women, of which about 6000 juvenile. These are the ones that pose the most acute problems of repatriation, due to the nature of their exploitation directly related to the extreme violence of organized crime, the massive vulnerability of victims and the considerable profits, with little risk, for traffickers. The question of the fate of the victims once they are identified arises in France acutely. The fact is that we have a constant dilemma: our Government places the fight against illegal immigration at the heart of its priority, especially at election time; however, it cannot ignore the dangers to which the victims of human trafficking may be exposed in the case of repatriation.

A country of destination and transit, France is indeed faced with the question of the return of victims to their country of origin. Three constants can give an idea of the difficulty specific to the situation in France: firstly, investigations last on average three years before the trial of traffickers, which implies a long and costly assistance in the territory of our country for victims followed; secondly accommodation problems and reintegration are complicated given the threats posed by criminal networks, mostly of foreign origin. Finally, most of the victims were sold in their country of origin, mainly by relatives, which makes their return even more problematic.

According to article 7 of the United Nations Trafficking in Persons Protocol, France is encouraged to take specific measures on repatriation of trafficking victims. According to article 8, these measures should provide, in case of return of victims to their home countries, that their safety is assured and is consistent with the rule of law in both countries. In all cases, the voluntary nature of their return should be preferred.

To sum up, the issue of repatriation is made more difficult in that policy fight against trafficking in human beings, quantitatively as qualitatively, faces a legitimate desire to control legal and illegal migration. You can easily understand that, with 12 million immigrants residing in France, with an estimate of about 200,000 illegal immigrants, and with 3,000 foreign unaccompanied children supported by welfare, the few dozen identified victims of trafficking weigh little.

The contrast is strong between the number of deportations, 27,000 in 2013, decided in the context of immigration laws, the 210,000 residence permits granted (52,000 asylum applications submitted in 2014), and the few successful cases of repatriation for victims of trafficking. In the latter case the specialization of agents, duration and cost of operations often remain an insurmountable obstacle.

Objectives and principles

France, respectful of its European and international commitments, is also required to apply the European Directive 2011/36/UE from the European Parliament and the Council of Europe which enhanced harmonization of systems intended to fight against human trafficking by improving protection and assistance to victims. According to specialized organizations, five main topics are usually related to the monitoring of trafficked persons: Health, Housing, Education, Vocational Training, Employment and Repatriation. Reintegration is the ultimate goal.

We all know, by experience, that the process of reintegration, as such, begins when a person decides to return to live in her country of origin. This whole notion of ‘going back’ is predicated on rebuilding life relationships in a country, a community and a family. Returning to one’s country of origin can be just as difficult, if not more so, than leaving it in the first place, bearing in mind the social and economic disruption that naturally takes place when a person emigrates.

NGOs that work with victims of trafficking in France state that, given the choice, the majority of women will choose to remain in the host country in spite of the difficult socio-economic conditions that most face. This is linked to a desire with women to find economic independence and/or to support their families, as well as a wish to turn their experience into something positive. It is also linked to an understandable fear of retaliation, because of the role of organized crime within trafficking and the fact that often it is the relatives of victims who have led them into exploitation.

Where the return is, more rarely, requested or accepted, the main motivation of women wishing to return to their home countries may be related to family ties, especially if their partners and children remain in the countries of origin. It’s a point that traffickers have understood, as seen more and more frequently, where children born in France are literally kidnapped and taken back to the country by traffickers to exert strong pressure on the remaining mothers on our territory. It is therefore evident at any repatriation policy faces a persistent dilemma between two policy imperatives: the first designed to protect and reintegrate victims of trafficking, and the second aimed at combating the development of illegal immigration.

While the awareness of the reality of human trafficking in my country is relatively recent, barely more than 10 years, the issue of immigration is at the heart of fierce political and social debates in France for more than forty years. Public opinion is not ready, probably due to almost non-existent awareness campaigns, to spontaneously join long-run policy for the benefit of foreigners uncooperative with the investigation services and still widely seen as criminals rather than victims.

Behind the caution to develop significant resources to assist victims of trafficking there is also the fear that this system diverted to traffickers by making false statements would be borne by the fund to help the living expenses of people who would still be exploited.

By the way criminal networks in several cases provide false requests for asylum, stereotyped, to victims in order to unduly benefit from public support in the field and regular residence permits, facilitating trafficking. The classic profile of victims of trafficking in France shows that the traffickers have a very good knowledge of our legal systems and know how to choose between two conflicting situations. The first one concerns irregular migrants arriving on our territory by air, with a stereotypical asylum application that gives them six months respite pending the examination of this unjustified demand. During this period they are subject to heavy exploitation without risk of deportation. The second one concerns migrants in a regular situation, temporarily and apparently, that will be exploited until they receive their visa or provisional employment contract. These papers, whether they are genuine or cleverly counterfeit, are sold to future victims in their home country, for sums around 60,000 euros. This debt, impossible to pay back, will cause the victim both to accept exploitation and to refuse possibilities of return.

Whether it is successful or not, repatriation simply does not mark the end of story. It rather marks a beginning: awaiting them upon return, much of the home economic and social conditions may be the same as when they left, or sometimes even worse, as standing obstacles that would interfere with their reintegration process and reestablishment of a new life. The risk of second and third time trafficking would be increased in such environment. Naturally it’s currently a key issue in the bilateral agreements that France is conducting with country like Romania, Bosnia and Bulgaria.

The legal and institutional French framework now formally meets international standards. This is particularly the case with the recent implementation of the European Directive adopted in 2011 by the European Parliament and the Council of Europe. It enhances harmonization of systems intended to fight human trafficking by improving the protection and assistance to victims. New legal provisions have been adopted in my country since 2003. Recently, an Act of 5 August 2013 transposing the Warsaw Convention created new offenses relating to forced labor, servitude and enslavement. A national action plan is currently implemented for the period 2014-2016. This plan includes three priorities, identify and support victims of trafficking, prosecute and dismantle criminal networks and make trafficking a wholly public policy. Twenty-three measures were announced, among which were highlighted victim identification, construction of a prostitution exit route, adoption of specific measures for minors and the strengthening of bilateral cooperation.

It is interesting to note that the plan does nothing related to repatriation. This function is provided by the dozen specialized NGOs who provide contacts with comparable structures of the countries concerned, where they exist. The establishment of a network of private and public contact points could allow to properly respond to urgent requests. However, since 2013 a new project, CARE, has taken a coordinated approach to the rehabilitation of victims of trafficking in the field of assisted voluntary return from Austria, Spain, France, Portugal and the United Kingdom.

The project offers individual tailor-made assistance to victims of trafficking identified in the five participating countries to help them reintegrate into their home country. It puts in place a coordinated mechanism including prior activities initially, assistance on arrival, as well as monitoring over a period of 12 months after their return. When trafficked people decide to return home, assistance given to them should be global (including through access to assistance for the socio-economic reintegration, psychosocial support, temporary housing...), and adapted to their individual needs for the transition to take place as smoothly as possible, so that the risk of re-trafficking is reduced. The project will provide assistance to 130 victims of trafficking, including 10 minors. Eligible beneficiaries are all victims of trafficking who wish to return voluntarily to a third country (outside the EU).

A circular was sent on January 2015 to prefects and prosecutors to better tailor their response to the scale and novelty of these problems. The Minister of Justice asked the 36 general prosecutors and the 180 local prosecutors to mobilize around four criminal policy areas: facilitating international cooperation in this field, the designation of special tribunals to try these cases and investigation, seizure and confiscation of proceeds of trafficking, and support to victims. The latter emphasizes the priority of the safety of victims, but says nothing of repatriation.

 An external evaluation

However, the assessment of the reality on the ground which was conducted in 2012 by the experts of GRETA shows the path that lies ahead for an effective implementation of these measures:

The independent evaluators noted that a very small number of victims had received assistance measures.

Accordingly they sent France three strong recommendations:

- Create a specific system of repatriation support for all victims of trafficking, in order to avoid re-trafficking.

- Assess the risks of re-trafficking specific to children victims, with systematic care of their best interest.

- Strive to develop co-operation with the countries to which trafficking victims are returned in order to improve their reintegration and rehabilitation.

The following example will show you how difficult, but not impossible, it is to move from good intentions to effective and positive reality.

Three encouraging examples of bilateral cooperation

Due to the presence in Paris of many minors engaged in begging, pickpocketing and prostitution in the early 2000s, France has engaged in an innovative process of cooperation with the authorities of the country of origin, once it recognized the inadequacy of protective measures for minors in danger classically put in place in our country since 1945.

- Between France and Romania:

A French-Romanian bilateral agreement was concluded in 2002 with measures related both to the minors’ return to their country and to combating exploitation networks. A second agreement was concluded in 2007 after a mitigated success, which deal with just 50 children. During this second period dozens of minors, mostly from the Roma community, were repatriated to Romania after controversial police operations in several camps. A premium of €300 per child was paid to each repatriated minor, arousing the greed of the traffickers. The premium system was abandoned in 2012 and cooperation between public officials and NGOs in both countries was intensified. A multidisciplinary working group published in 2014 a good practice guide of cooperation for the return of the child victims of trafficking, to which Germany is associated.

- Between France and Bulgaria:

A first experimental agreement was reached between 2003 and 2006 for the benefit of 24 people, sexual exploitation victims, who chose to return to Bulgaria voluntarily. Since then, police, administrative and social cooperation has developed on the model tested with Romania.

- Between France and Bosnia:

More recently the same kind of cooperation has been engaged in with Bosnia, associated with close cooperation in criminal investigations. It is held in a climate of mutual trust, with the efficient use of the European arrest warrant and joint investigation teams. The European Commissioner for human rights, in his report on his recent visit to France, noted however the persistence of problems related to the removal of Romanian and Bulgarian Roma migrants, but he particularly noted that since 2013 the number had fallen by 84% compared to 2012, although still involving more than 10,800 people.

These examples show the way forward in my country. No tangible and lasting results can be expected if they are not based on three main conditions: the affirmation of a political will to consider trafficking as a priority issue on a national scale; the establishment of a comprehensive strategy combining victim identification; strengthening the fight against networks and intensive practical cooperation. Such bilateral reintegration aid arrangements are currently operational in 18 countries from Eastern Europe and Africa.

To conclude

I hope that the plenary session works contributes to the international debate on the support for victims of trafficking in human beings. We know in fact the five key points in this field: better respect for international conventions on immigration in the light of the dignity and rights of migrants; more evenly applying the measures to assist victims; promoting support for victims who will not or cannot cooperate; better training of practitioners; and raising public awareness.

My opinion is that the exchange of information between organizations, private and public, in different countries on this issue is a tool of fundamental importance for improving the situation of these children and grown-ups and for promoting their independence and empowerment. In 2011 UN Secretary General Ban Ki-moon summed up our topic exactly:

When their rights are violated, when they are marginalized and excluded, migrants cannot bring anything, neither financially, nor socially, to the society they have left or the one they are joining.

By contrast, when migrations are supported by an effective policy and human rights’ protection, they can constitute a factor of progress as much for the persons as for the countries, whether they are countries of origin, transit, or destination”.

Finally, let me quote Mr Nils Muiznieks, European commissioner for human rights of the Council of Europe, in a 2015 declaration: “never forget that human rights are not a problem, but the solution”.

 

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